s the
late U.S. Supreme Court Chief Justice William Rehnquist is warmly
remembered for his conservatism and his defense of judicial
prerogatives, a troubling part of his legacy is being ignored  his
unprecedented politicization of the American courts, at times making
them little more than an enforcement arm for the Republican Party.

When the chips were down for Republican leaders 
from George H.W. Bush on the Iran-Contra scandal to George W. Bush in
Election 2000  Rehnquist worked behind the scenes with other right-wing
judges to make the federal courts the GOPs last line of defense. In
doing so, these jurists made a mockery of their sworn duty to enforce
the law impartially and to protect the Constitution.

Much of this history of Rehnquists partisanship is being
forgotten amid this weeks eulogies about a respected Washington figure who
supposedly mellowed in his later years. But the reality is that Rehnquist always
remained the Republican partisan that he was in his early days in Arizona
politics.

In the 1960s, Rehnquist opposed
desegregation in Phoenix and worked on Republican ballot security, a program
allegedly designed to intimidate African-American and other minority voters.

According to a Senate summary of
the opposition to Rehnquist's 1986 nomination to be chief justice, Rehnquist
publicly opposed a Phoenix public accommodations ordinance, and he publicly
challenged a plan to end school segregation in Phoenix, stating that we are no
more dedicated to an integrated society than a segregated society.

The Senate summary added that in
the early 1960s, he [Rehnquist] led a Republican Party ballot security program
designed to disenfranchise minority voters. The [Senate Judiciary] Committee has
received sworn testimony from numerous credible witnesses that, as part of his
involvement in the ballot security program, Mr. Rehnquist personally challenged
the eligibility of minority voters. Justice Rehnquist has categorically denied
this. But none of these witnesses had anything to gain by misrepresenting the
truth.

Tipping Point

Nevertheless, with Rehnquists confirmation to head the
high court and Ronald Reagans appointment of more and more conservative judges,
the stage was being set for an extraordinary politicization of the federal
judiciary.

By the early 1990s, a tipping point was reached as a new
generation of right-wing judges exercised their new dominance to protect
Reagans legacy  and George H.W. Bushs reelection campaign  from the fallout
of the Iran-Contra scandal.

Iran-Contra special prosecutor Lawrence Walsh  himself a
lifelong Republican  was stunned by the partisanship of these jurists. In his
memoir, Firewall, Walsh described the Reagan-Bush loyalists on the U.S.
Court of Appeals in Washington as a powerful band of Republican appointees
[who] waited like the strategic reserves of an embattled army.

Rehnquist himself played a key role in both sabotaging the
Iran-Contra investigation and setting the stage for the relentless legal assault
on Bill Clinton and his administration. In a little-noticed maneuver in 1992,
Rehnquist used his power as chief justice to overhaul the three-judge panel that
picked and supervised special prosecutors.

The job of leading that panel had been held by senior
Appeals Court Judge George MacKinnon, an old-time Republican who had selected
and supported Walsh. But after Walsh broke through the Iran-Contra cover-up in
1991 and brought obstruction-of-justice cases against former Defense Secretary
Caspar Weinberger and several senior CIA officials, Rehnquist acted.

Walsh told me that he learned about Rehnquists maneuver in
a phone call from MacKinnon, who said Rehnquist was replacing him with David
Sentelle, a junior appeals court judge known as a committed Republican partisan.

By ousting MacKinnon, Rehnquist eliminated one of Walshs
strongest defenders. By putting Sentelle in charge, the chief justice picked a
judge who had already voted to overturn Walshs hard-fought convictions of
Reagans White House aide Oliver North and National Security Adviser John
Poindexter.

Defying the Law

Rehnquist made this change despite language in the 1978
Ethics in Government Act aimed at preventing partisanship by stipulating that in
picking members of the three-judge panel priority shall be given to senior
circuit judges and retired judges.

That provision had always been
followed  until 1992 when Rehnquist brushed aside the language and reached down
for an active junior judge, Sentelle.

Beyond Sentelles lack of
senior status, he was known as one of the most conservative partisans on the
federal bench. A protégé of North Carolina Sen. Jesse Helms and a former Reagan
convention delegate, Sentelle had even named his daughter, Reagan, after his
political idol.

Sentelle also continued
denouncing liberals after his appointment to the federal bench. In one article
published in the Harvard Journal of Law and Public Policy in winter 1991,
Sentelle accused leftist heretics of wishing to turn the United States into a
collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and
socially permissive state.

With MacKinnons ouster, Walsh recognized that his
Iran-Contra investigation was growing increasingly isolated, even as it closed
in on the long-protected roles of Ronald Reagan and George H.W. Bush. Under
mounting pressure  and after Bush pardoned six Iran-Contra defendants on
Christmas Eve 1992  Walsh reluctantly shut his office down.

But Sentelle remained as Rehnquists appointee to run the
three-judge panel. Sentelle used that authority to
pick Republicans for sensitive special prosecutor investigations, whether the
target was a Republican or a Democrat.

Sentelles first special
prosecutor was named when a scandal arose in fall 1992 over the Bush
administrations illegal search of Bill Clintons passport records  seeking
derogatory material that could be used to destroy Clintons political viability.

Sentelles panel handed this
politically sensitive probe to Republican stalwart Joseph diGenova, who ran an
investigation that turned up many facts pointing to Republican guilt but still
concluded that George H.W. Bush and his operatives were innocent. [For
details of this case, see Robert Parrys
Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]

Once Clinton took office,
Sentelles panel began selecting hard-line conservatives to investigate the
Democrats. Republican Donald Smaltz was named to investigate Agriculture
Secretary Mike Espy. David Barrett, who had headed Lawyers for Reagan, was
picked to investigate Housing Secretary Henry Cisneros.

Most notably, George H.W. Bushs
Solicitor General Kenneth Starr was chosen to investigate President Clinton,
first over the Whitewater case and later over a variety of other allegations.

In Senate testimony in 1999,
Sentelle explained that he consciously selected political adversaries to conduct
these investigations. Sentelle said he looked for Republicans who had been
active on the other side of the political fence to investigate Clinton and his
administration.

Beyond the view of many legal
experts that prosecutors should be as impartial as possible  neither friends
nor foes of the person under investigation  Sentelle had applied his selection
strategy differently in 1992 when he picked Republican diGenova to investigate
alleged wrongdoing by the first Bush administration.

Hunting the President

Regardless of how one views the
merits of the Clinton scandals, theres no question that the time-consuming
investigations took a toll on the Democrats.

The investigations  into
relatively trivial matters such as the Clintons Whitewater business deals, the
Travel Office firings and the mistaken delivery of FBI files to the White House
 weakened Clinton politically and created the climate for his impeachment in
1998 over his misleading testimony about a sexual affair with White House
employee Monica Lewinsky.

Before MacKinnons death in 1995,
he told his family that if he had remained in charge of the special prosecutor
panel he would not have appointed Starr. A son, James D. MacKinnon, said Judge
MacKinnon objected to Starrs appointment in 1994 because of the appearance of
partisanship arising from Starrs senior position in the prior administration.

Judge MacKinnon also expressed
concern about Starrs frequent public appearances. The judge felt these were
wholly inappropriate for an independent counsel, James MacKinnon said, adding
that: My father always felt that independent counsels and judges should be
extraordinarily discreet with any public comments, and be as anonymous as
possible and simply do their work.

The hidden hand behind Starr and
the other special prosecutors who bedeviled the Clinton administration was U.S.
Supreme Court Chief Justice Rehnquist, who had picked Sentelle who, in turn, had
picked the special prosecutors.

Crossover to Gore

The eight-year assault on Clinton
carried over into Election 2000 as George W. Bushs campaign endeavored to link
Vice President Al Gore to the Clinton sleaze. According to polls, the
Republicans succeeded in spreading this taint to Gore.

Still, on Nov. 7, 2000, the
American voters cast more than a half million more ballots for Gore than for
Bush. Gore also led in the Electoral College.

Bush only could win by claiming
the 25 electoral votes of Florida, where he was clinging to an official lead of
only a few hundred votes. Limited recounts, however, were eating into that
margin.

The situation looked grim for
Bush on Dec. 8 when the Florida Supreme Court ordered a statewide review of
ballots that had been rejected by counting machines. The recounting began on the
morning of Dec. 9. Immediately, the canvassers began finding scores of
legitimate votes that the machines had missed.

Bushs lawyers raced to the U.S.
Appeals Court in Atlanta to stop the count. Though dominated by conservatives,
that court found no grounds to intervene.

A frantic Bush then turned to the
U.S. Supreme Court in Washington. There, in the late afternoon, the court took
the unprecedented step of stopping the counting of votes cast by American
citizens.

Justice Antonin Scalia made clear
that the purpose of the courts action was to prevent Bush from falling behind
in the tally and thus raising questions about his legitimacy should the Supreme
Court later declare him the winner.

That outcome would cast a cloud
over the legitimacy of an eventual Bush presidency, explained Scalia. Count
first, and rule upon the legality afterwards, is not a recipe for producing
election results that have the public acceptance democratic stability requires,
Scalia wrote.

Trusting the Law

Nevertheless, on Dec. 11, Gore
and his lawyers voiced confidence that the rule of law would prevail, that the
U.S. Supreme Court would rise above any partisan concerns and insist that the
votes be counted and that the will of the voters be respected.

The Gore team went before
Rehnquists court apparently still not cognizant of the reality that whatever
they argued, the five conservative justices were determined to make Bush the
next President.

The evidence is now clear that
Rehnquist and his four Republican colleagues decided on the outcome of their
legal ruling in Bush v. Gore before they settled on their legal logic. Indeed,
the logic flipped from the start of their deliberations to the end, but their
pro-Bush verdict remained steadfast.

USA Today
disclosed this inside story in an article about the strains that the Bush v.
Gore ruling created within the court. Though the article was sympathetic to the
pro-Bush justices, it disclosed an important fact: that the five were planning
to rule for Bush after oral arguments on Dec. 11, 2000. The court even sent out
for Chinese food for the clerks, so the work could be completed that night.

At that point, the legal
rationale for stopping the Florida recount was to have been that the Florida
Supreme Court had made new law when it referenced the state constitution in an
initial recount decision  rather than simply interpreting state statutes.

Even though this argument was
highly technical, the rationale at least conformed with conservative principles
which are supposedly hostile to judicial activism. But the Florida Supreme
Court threw a wrench into the plan.

On the evening of Dec. 11, the
state court submitted a revised ruling that deleted the passing reference to the
state constitution. The revised ruling based its reasoning entirely on state
statutes, which permitted recounts in close elections.

A Conservative
Split

This modified state ruling opened
a split among the five conservatives. Justices Sandra Day OConnor and William
Kennedy no longer felt they could agree with the new law rationale for
striking down the recount, though Justices Rehnquist, Scalia and Clarence Thomas
were prepared to stick with the old thinking even though its foundation had been
removed, USA Today reported.

OConnor and Kennedy then veered
off in a very different direction. Through the day of Dec. 12, they worked on an
opinion arguing that the Florida Supreme Court had failed to set consistent
standards for the recount and that the disparate county-by-county standards
constituted a violation of the equal protection rules of the 14th
Amendment.

The logic of this argument was
quite thin and Kennedy reportedly had trouble committing it to writing. To
anyone who had followed the Florida election, it was clear that varied standards
already had been applied throughout the state.

Wealthier precincts had benefited
from optical voting machines that were simple to use and eliminated nearly all
errors, while poorer precincts with many African-Americans and retired Jews were
stuck with outmoded punch-card systems with far higher error rates. Some
counties had conducted manual recounts, too, and those totals were part of the
tallies giving Bush a tiny lead.

The statewide recount was
designed to reduce these disparities and thus bring the results closer to
equality. Applying the equal protection provision, as planned by OConnor and
Kennedy, turned the 14th Amendment on its head, guaranteeing less
equality than would have occurred by letting the recounts go forward.

Indeed, if one were to follow the
logic of the OConnor-Kennedy position, the only fair conclusion would have
been to throw out Floridas presidential election in total. After all, the U.S.
Supreme Court was effectively judging Floridas disparate standards to be
unconstitutional.

That, however, would have left
Gore with a majority of the remaining electoral votes.

The Big Switch

Perhaps even more startling than
the stretched logic of the OConnor-Kennedy faction was the readiness of
Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely
at odds with their own legal rationale for blocking the recount.

On the night of Dec. 11, that
trio was ready to bar the recount because the Florida Supreme Court had created
new law. On Dec. 12, the same three justices voted to block the recount
because the Florida Supreme Court had not created new law  by establishing
precise statewide recount standards. [USA
Today, Jan. 22, 2001]

The five conservatives had
devised their own Catch-22. If the Florida Supreme Court set clearer standards,
that would be struck down as creating new law. If the state court didnt set
clearer standards, that would be struck down as violating the equal protection
principle. Heads Bush wins; tails Gore loses.

After the courts Dec. 12 ruling
and Gore's concession the next day, Justice Thomas told a group of high school
students that partisan considerations played zero part in the court's
decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist
answered, Absolutely.

In later comments about the
courts role in the case, Rehnquist seemed unfazed by the inconsistency of the
logic. His overriding rationale seemed to be that he viewed Bushs election as
good for the country  whether most voters thought so or not.

In a speech on Jan. 7, 2001, the
chief justice said sometimes the U.S. Supreme Court needed to intervene in
politics to extricate the nation from a crisis. Rehnquists remarks were made in
the context of the Hayes-Tilden race in 1876, when another popular vote loser,
Rutherford B. Hayes, was awarded the presidency after justices participated in a
special election commission.

The political processes of the
country had worked, admittedly in a rather unusual way, to avoid a serious
crisis, Rehnquist said.

Scholars interpreted Rehnquists
remarks as shedding light on his thinking during the Bush v. Gore case as well.

Hes making a rather clear
statement of what he thought the primary job of our governmental process was,
said Michael Les Benedict, a history professor at Ohio State University. That
was to make sure the conflict is resolved peacefully, with no violence.
[Washington Post,
Jan. 19, 2001]

GOP Rioters

But where were the threats of
violence in the 2000 election? Gore had reined in his supporters, urging them to
avoid confrontations and to trust in the rule of law. The only violence had
come from the Bush side, when the Bush campaign flew protesters from Washington
to Miami to put pressure on local election boards.

On Nov. 22, 2000, as the
Miami-Dade canvassing board was preparing to examine ballots, a well-dressed mob
of Republican operatives charged the office, roughed up some Democrats and
pounded on the walls. The canvassing board promptly reversed itself and decided
to forego the recount.

The next night, the Bush-Cheney
campaign feted the rioters at a hotel party in Fort Lauderdale. Starring at the
event was crooner Wayne Newton singing Danke Schoen, but the highlight for the
operatives was a thank-you call from George W. Bush and his running mate, Dick
Cheney, both of whom joked about the Miami-Dade incident, the Wall Street
Journal reported.

The Journal noted that behind
the rowdy rallies in South Florida this past weekend was a well-organized effort
by Republican operatives to entice supporters to South Florida, with House
Majority Whip Tom DeLay's Capitol Hill office taking charge of the recruitment.
[WSJ, Nov. 27, 2000. For more details, see Consortiumnews.coms Bushs
Conspiracy to Riot.]

In other less violent ways,
Bush-Cheney operatives signaled that they would not accept an unfavorable vote
total in Florida.

If Gore pulled ahead, the
Republican-controlled state legislature was preparing to void the results. In
Washington, the Republican congressional leadership also was threatening to
force a constitutional crisis if Gore prevailed in Florida.

If one takes Rehnquists
good-for-the-country rationale seriously, that means the U.S. Supreme Court
was ready to award the presidency to the side most willing to use violence and
other anti-democratic means to overturn the will of the voters.

Ignoring the Voters

Gore won the national popular
vote by more than a half million votes and 
according to a later unofficial recount of Florida's ballots  would have
narrowly carried the state if all legally cast ballots were counted. [See
Consortiumnews.com's "So
Bush Did Steal the White House."]

Yet instead of ruling that the
vote tabulations alone should decide the victor  a position the
U.S. Supreme Court could have taken  the Rehnquist court intervened to hand the
presidency to Bush.

This good-for-the-country
rationale held that Gore and his supporters were less likely to disrupt the
political process or to resort to violence if they came out on the losing side.
In other words, Bush got what he wanted because he was ready to provoke a crisis
if the court told him to accept the will of the voters.

But other evidence suggests that
Rehnquists motive wasnt as noble as his suggestion that he was doing what was
best for the country.

In looking back at his history,
including the Arizona ballot security and his selection of Sentelle to pick
special prosecutors, a strong argument could be made that Rehnquists real
motive was neither evenhanded enforcement of the law nor the nations best
interests  but simply what was good for the Republican Party and the
conservative movement.

When Rehnquist swore George W.
Bush in as the 43rd President on Jan. 20, 2001, the deed was done. A
majority on the U.S. Supreme Court had employed specious logic in exploiting its
unique position as the final arbiter of American law to overturn the will of the
American voters.

Now the question is whether the
next court  expected to come under the leadership of Rehnquists former clerk
John Roberts  will continue Rehnquists unspoken judicial legacy, that
partisanship and ideology trump all.

Robert Parry broke many of the Iran-Contra
stories in the 1980s for the Associated Press and Newsweek. His new book, Secrecy & Privilege: Rise of the Bush Dynasty from
Watergate to Iraq, can be ordered at
secrecyandprivilege.com. It's also available at
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine,
the Press & 'Project Truth.'